Justia U.S. 10th Circuit Court of Appeals Opinion Summaries

Articles Posted in International Law
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Petitioner Sushma KC sought review of a Board of Immigration Appeals’ (BIA) denial of her motion to reopen or reconsider its previous decision denying her asylum, withholding of removal, and protection under the Convention Against Torture (CAT). After arriving in this country, KC filed timely applications for asylum, but on June 23, 2008, an immigration judge (IJ) denied her applications, and ordered her to voluntarily depart or be removed to her native Nepal. In his oral decision, the IJ noted the threats she received: "the most recent and graphic of them was that her head would be cut off [by Maoist insurgents] unless she paid 300,000 rupees." The IJ concluded, however, that KC failed to satisfy the "one central reason" test (see 8 U.S.C. 1158(b)(1)(B)(i)) which required showing that one of the central reasons the Maoists targeted her was because of her political beliefs. KC appealed to the BIA, which upheld the IJ’s decision. The BIA concluded that "[t]he Immigration Judge reasonably determined based on the record as a whole that the Maoists’ demands for money were acts of extortion not related to the respondent’s political opinion." In addition, the BIA denied KC’s motion to remand her case to the IJ so that he could consider additional evidence concerning her husband’s disappearance. Because the BIA adopted the IJ’s analysis without further explanation, both to dismiss KC’s appeal and to deny reconsideration, the Tenth Circuit held that the BIA’s decision lacked "rational explanation." Accordingly, the Court held that the BIA abused its discretion, and remanded the case for further consideration. The Court affirmed the BIA in all other respects.

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Israeli citizens Arturas Bakanovas, Edita Bakanovas, and their daughter, Karolina Bakanovas, sought review of an order of the Board of Immigration Appeals (BIA) that denied their motion to reopen. In 1990 Arturas and Edita Bakanovas emigrated from Lithuania to Israel and became Israeli citizens. In 1991 they entered the United States on visitor visas and, after they overstayed their visas and the Immigration and Nationalization Service issued orders to show cause why they should not be deported, Arturas applied for asylum. The asylum application stated that Arturas had suffered persecution in Israel because of his Catholic faith and Lithuanian origin, that Edita had suffered persecution in Lithuania because of her Jewish faith, and that they both suffered persecution in Israel because of their interfaith marriage. In 1994 an immigration judge denied the Bakanovases asylum and withholding of deportation but granted their request for voluntary departure, with an alternate order of deportation to Israel or Lithuania if they remained in the United States after the voluntary-departure deadline. In October 2000 the BIA affirmed the order, and the Tenth Circuit affirmed that decision. The Bakanovases did not leave the United States, and in January 2007 they were arrested on immigration charges and released on bond. They then met with their current attorney, who informed them in April 2007 of the availability of relief under the Convention Against Torture. In March 2010, almost three years later, they filed a motion to reopen with the BIA, which the BIA denied. They petitioned the Tenth Circuit to review that decision. Because the denial of a motion to reopen is "a final, separately appealable order," the Tenth Circuit lacked jurisdiction to review the case. The Court dismissed Petitioners' appeal.